Democratic-Appointed Judges Begin to Take Senior Status

Prior to the inauguration, I wrote about the prospects of Democratic-appointed federal judges taking senior status. Now, barely a week after the inauguration, the first batch of senior status notifications have trickled in.

Ninety minutes after the inauguration, Judge Victoria Roberts (EDMI) wrote to President Biden that she will take senior status on February 24. According to my calculations, Judge Roberts became eligible for senior status on December 31, 2016 when she turned 65 and accumulated 18 years of service. That date was too late for President Obama to replace her. But now, the Clinton appointee can be replaced by President Biden.

On January 21, Judge William Alsup (NDCA) wrote to President Biden. He said “I feel it is time for me to ‘go senior.'” And he assumed senior status immediately. Why is now the right time? According to my calculations, Judge Alsup became eligible for senior status in 2012 when he turned 67, and accumulated 13 years of service. Judge Alsup hung on for the entirety of the second Obama administration, and all of the Trump administration. (I was very critical of Judge Alsup’s DACA ruling back in 2018).

I’m sure there are others. I’m keeping track for a forthcoming paper.

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Chris Stewart: Race, COVID-19, and the Future of School Choice

Citizen.Stewart (1)

“There isn’t an issue facing Black people today that doesn’t find its origins in K-12 education,” writes Chris Stewart, CEO of the education nonprofit brightbeam and a prolific writer and podcaster. “Without our own collective governance of our children’s intellectual development, how can we win? Without Black self-determination in who teaches them, what they learn, where they learn, and how lessons are taught to them, what is the future of our freedom?”

A Christian and a libertarian, the Minnesota-based Stewart says that school lockdowns over the past year have forced parents to become more involved in and attentive to their children’s education and may well lead to an exodus from traditional public schools. In a wide-ranging conversation with Nick Gillespie, Stewart also talks about why he believes that the government shouldn’t be in charge of curricula and why support for school choice will continue to grow despite efforts by teachers unions and education bureaucrats to maintain a failing status quo.

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The Ninth Rule of Court Packing Is Appoint A “Court Reform” Commission One Week After The Inauguration

Recently, I wondered when Biden would begin to staff his “court reform” commission. Today, Politico reports that the process has begun.

The Biden administration is moving forward with the creation of a bipartisan commission to study reforms to the Supreme Court and the federal judiciary.

The commission will be housed under the purview of the White House Counsel’s office and filled out with the behind-the-scenes help of the Biden campaign’s lawyer Bob Bauer, who will co-chair the commission. Its specific mandate is still being decided. But, in a signal that the commission is indeed moving ahead, some members have alreadybeen selected, according to multiple people familiar with the discussions.

Among those who will be on the commission are Cristina Rodríguez, a professor at Yale Law School and a former deputy assistant attorney general in the Obama Department of Justice, who will join Bauer as co-chair. Caroline Fredrickson, the former president of the American Constitution Society, and Jack Goldsmith, a Harvard Law School professor and a former assistant attorney general in the Bush Department of Justice, will also serve on the commission, those familiar with discussions said. 

“The President remains committed to an expert study of the role and debate over reform of the court and will have more to say in the coming weeks,” a White House official said in a statement.

The recruitment of members is still ongoing, but a source familiar with the discussion expects between nine and 15 members total to be appointed to the commission. Rodríguez and Goldsmith did not respond to a request for comment, and Fredrickson declined to comment.

I am grateful Jack Goldsmith is on that commission. His name is the only right-of-center person identified by Politico. Goldsmith has worked closely with Bauer in recent years. My hope is that there is some balance. In any event, Given the current tilt of Congress, any substantial change is unlikely during the next two years or so.

For those with a sense of nostalgia, you can see my prior Court-Packing posts here: Rules # 1234567, 8.

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Can California Employee Be Fired for Attending the Jan. 6 Protest at the Capitol?

In Snyder v. Alight Solutions, LLC (filed yesterday), Leah Snyder claims that her employer fired her on these grounds. Here is what she alleges in the Complaint:

She listened to speeches being made and walked to the Capitol, and then she left. She did not participate in any rioting, she did not observe any rioting, and she did not hear of any injuries to persons or damages to property during her peaceful visit. On return home, she posted two “selfies” with her friends and at least one smiling police officer in front of the Capitol to a comment thread on the social media of Sean Armstrong. She believed she was engaging in a debate over the nature and scope of a protest at the Capitol….

On January 6, 2021, while on paid time off from work, she visited Washington, D.C. She and perhaps as many as one million other people, listened to speeches made by the President of the United States and other important persons. Plaintiff is not a zealous adherent of any system of beliefs. Her impression of the speeches was that the assembled people were being asked to peacefully show their support for the U.S. Constitution and the rule of law while presenting their displeasure with vote counting procedures during the recent national election. At the conclusion of the speeches, she joined a group of people who were peacefully walking to the Capitol. She reached the Capitol, took several “selfies” with friends, and at least one with a smiling police officer in the background. She did not cross or see any barricades. She did not see nor participate in any rioting. She did not enter the Capitol. She did not observe or hear of any injuries to persons or damages to property. She was not arrested and she did not see anyone who was arrested. On occasion, when she encountered police officers, she inquired if walking with the other members of the crowd was legal, and each time, the officers responded that what she was doing was legal. After spending some time at the Capitol, she left and went home.

She claims she was then fired because of those actions.

If her allegations are correct, then the employer likely violated California Labor Code §§ 1101-02. Those statutes (enacted in 1937) provide,

No employer shall make, adopt, or enforce any rule, regulation, or policy:

(a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.

(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.

No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.

[1.] In Gay Law Students Ass’n v. Pac. Tel. & Tel. Co. (Cal. 1979):, the California Supreme Court made clear that “These statutes cannot be narrowly confined to partisan activity”  (unlike some more narrowly written statutes in other cases, that are limited to activity related to parties or elections):

“The term ‘political activity’ connotes the espousal of a candidate or a cause, and some degree of action to promote the acceptance thereof by other persons.” The Supreme Court has recognized the political character of activities such as participation in litigation, the wearing of symbolic armbands, and the association with others for the advancement of beliefs and ideas.

Going to a political demonstration would thus be covered.

[2.] The statute seems to be limited to actions pursuant to a “rule, regulation, or policy”; and the California Supreme Court has defined “policy” as “[a] settled or definite course or method adopted and followed” by the employer. But, as the Louisiana Supreme Court held, interpreting a similar statute, “[T]he actual firing of one employee for political activity constitutes for the remaining employees both a policy and a threat of similar firings.” And such firing tends to coerce other employees: “[T]he actual firing of one employee for political activity constitutes for the remaining employees both a policy and a threat of similar firings” (I quote again the Louisiana case).

This is especially for large companies these days, in which employment decisions have become much more formalized and bureaucratized (in part because the process of hiring and firing has become a highly legally regulated activity). It seems unlikely to me that the employer (which apparently has 15,000 employees) will say, “Nope, this was just a one-off decision, we might well handle other employees completely differently”; generally, part of its argument would indeed be that there’s some policy that this 20-year employee has violated, which is why she was fired. This might be why some recent California cases have basically treated these sections as generally applicable to firings based on political activity, e.g.,

If plaintiff was fired for his particular political perspective, affiliation or cause of favoring Proposition 8 or being against same-sex marriage, so that it may be inferred that (as plaintiff alleged) Safeway was in effect declaring that the espousal or advocacy of such political views will not be tolerated—then Safeway’s action constituted a violation of Labor Code sections 1101 and 1102.

or

Ali asserts he was fired not because the content of his articles contravened the editorial policies or standards of the newspaper, but because outside of the workplace he publicly criticized an influential public official for supporting a particular political candidate. Whether Ali can ultimately prove all the elements of his claim, he has submitted sufficient evidence of a public policy violation to survive a motion for summary judgment

[3.] Now a California employer is free to fire employees because they committed crimes, or even because it believes they committed crimes, apart from their political activity. If, for instance, Alight the employer fires anyone who it has reason to think were engaged in a riot or vandalism, that isn’t itself firing for political activity.

But Snyder’s allegation is that she didn’t commit any crimes. And to the extent that the employer inferred that she must have committed crimes based simply on her attendance at the Capitol protest, I think that has to be treated as a restriction on political activity.

[4.] Naturally, all of this would equally apply to people attending any sort of protest, left-wing, right-wing, or otherwise: e.g., an anti-police-brutality protest at which some of the protesters engaged in vandalism or arson, an anti-abortion protest at which some of the protesters illegally blocked entrances to an abortion clinic, an anti-globalization protest at which some of the protesters violated the law, or anything else along those lines.

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San Francisco School Board Votes 6-1 To Rename 44 Schools

rtrltwelve043563

San Francisco’s school board voted 6-1 on Tuesday to accept a committee’s recommendation to rename 44 public schools that honor historical figures like Presidents Abraham Lincoln, George Washington, and Thomas Jefferson. A school named for current Democratic Senator Dianne Feinstein will be retitled as well.

“It’s a message to our families, our students and our community,” said board member Mark Sanchez, according to the San Francisco Chronicle. “It’s not just symbolic. It’s a moral message.”

The board had been considering this move for some time, despite opposition from Mayor London Breed, a Democrat, who rightly objected to the timing.

“In the midst of this once in a century challenge, to hear that the District is focusing energy and resources on renaming schools—schools that they haven’t even opened—is offensive,” said Breed in October.

“It’s offensive to parents who are juggling their children’s daily at-home learning schedules with doing their own jobs and maintaining their sanity. It’s offensive to me as someone who went to our public schools, who loves our public schools, and who knows how those years in the classroom are what lifted me out of poverty and into college. It’s offensive to our kids who are staring at screens day after day instead of learning and growing with their classmates and friends.”

Offensive, indeed. The renaming process is likely to cost schools millions of dollars at a time when the district is already facing a significant budget deficit; the Chronicle estimates it will be $75 million by next year. San Francisco schools don’t have a single dollar to waste on new signs: Every cent must go toward protective equipment, ventilation, and whatever else is needed to get kids back in their desks. Whether a school is named Abraham Lincoln Elementary or George Washington High or School McSchoolface is really not important right now. (And what’s wrong with Lincoln, anyway? He freed the slaves!)

That the school board is wasting time with this speaks volumes about the competency of its members.

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Chris Stewart: Race, COVID-19, and the Future of School Choice

Citizen.Stewart (1)

“There isn’t an issue facing Black people today that doesn’t find its origins in K-12 education,” writes Chris Stewart, CEO of the education nonprofit brightbeam and a prolific writer and podcaster. “Without our own collective governance of our children’s intellectual development, how can we win? Without Black self-determination in who teaches them, what they learn, where they learn, and how lessons are taught to them, what is the future of our freedom?”

A Christian and a libertarian, the Minnesota-based Stewart says that school lockdowns over the past year have forced parents to become more involved in and attentive to their children’s education and may well lead to an exodus from traditional public schools. In a wide-ranging conversation with Nick Gillespie, Stewart also talks about why he believes that the government shouldn’t be in charge of curricula and why support for school choice will continue to grow despite efforts by teachers unions and education bureaucrats to maintain a failing status quo.

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The Ninth Rule of Court Packing Is Appoint A “Court Reform” Commission One Week After The Inauguration

Recently, I wondered when Biden would begin to staff his “court reform” commission. Today, Politico reports that the process has begun.

The Biden administration is moving forward with the creation of a bipartisan commission to study reforms to the Supreme Court and the federal judiciary.

The commission will be housed under the purview of the White House Counsel’s office and filled out with the behind-the-scenes help of the Biden campaign’s lawyer Bob Bauer, who will co-chair the commission. Its specific mandate is still being decided. But, in a signal that the commission is indeed moving ahead, some members have alreadybeen selected, according to multiple people familiar with the discussions.

Among those who will be on the commission are Cristina Rodríguez, a professor at Yale Law School and a former deputy assistant attorney general in the Obama Department of Justice, who will join Bauer as co-chair. Caroline Fredrickson, the former president of the American Constitution Society, and Jack Goldsmith, a Harvard Law School professor and a former assistant attorney general in the Bush Department of Justice, will also serve on the commission, those familiar with discussions said. 

“The President remains committed to an expert study of the role and debate over reform of the court and will have more to say in the coming weeks,” a White House official said in a statement.

The recruitment of members is still ongoing, but a source familiar with the discussion expects between nine and 15 members total to be appointed to the commission. Rodríguez and Goldsmith did not respond to a request for comment, and Fredrickson declined to comment.

I am grateful Jack Goldsmith is on that commission. His name is the only right-of-center person identified by Politico. Goldsmith has worked closely with Bauer in recent years. My hope is that there is some balance. In any event, Given the current tilt of Congress, any substantial change is unlikely during the next two years or so.

For those with a sense of nostalgia, you can see my prior Court-Packing posts here: Rules # 1234567, 8.

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Can California Employee Be Fired for Attending the Jan. 6 Protest at the Capitol?

In Snyder v. Alight Solutions, LLC (filed yesterday), Leah Snyder claims that her employer fired her on these grounds. Here is what she alleges in the Complaint:

She listened to speeches being made and walked to the Capitol, and then she left. She did not participate in any rioting, she did not observe any rioting, and she did not hear of any injuries to persons or damages to property during her peaceful visit. On return home, she posted two “selfies” with her friends and at least one smiling police officer in front of the Capitol to a comment thread on the social media of Sean Armstrong. She believed she was engaging in a debate over the nature and scope of a protest at the Capitol….

On January 6, 2021, while on paid time off from work, she visited Washington, D.C. She and perhaps as many as one million other people, listened to speeches made by the President of the United States and other important persons. Plaintiff is not a zealous adherent of any system of beliefs. Her impression of the speeches was that the assembled people were being asked to peacefully show their support for the U.S. Constitution and the rule of law while presenting their displeasure with vote counting procedures during the recent national election. At the conclusion of the speeches, she joined a group of people who were peacefully walking to the Capitol. She reached the Capitol, took several “selfies” with friends, and at least one with a smiling police officer in the background. She did not cross or see any barricades. She did not see nor participate in any rioting. She did not enter the Capitol. She did not observe or hear of any injuries to persons or damages to property. She was not arrested and she did not see anyone who was arrested. On occasion, when she encountered police officers, she inquired if walking with the other members of the crowd was legal, and each time, the officers responded that what she was doing was legal. After spending some time at the Capitol, she left and went home.

She claims she was then fired because of those actions.

If her allegations are correct, then the employer likely violated California Labor Code §§ 1101-02. Those statutes (enacted in 1937) provide,

No employer shall make, adopt, or enforce any rule, regulation, or policy:

(a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.

(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.

No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.

[1.] In Gay Law Students Ass’n v. Pac. Tel. & Tel. Co. (Cal. 1979):, the California Supreme Court made clear that “These statutes cannot be narrowly confined to partisan activity”  (unlike some more narrowly written statutes in other cases, that are limited to activity related to parties or elections):

“The term ‘political activity’ connotes the espousal of a candidate or a cause, and some degree of action to promote the acceptance thereof by other persons.” The Supreme Court has recognized the political character of activities such as participation in litigation, the wearing of symbolic armbands, and the association with others for the advancement of beliefs and ideas.

Going to a political demonstration would thus be covered.

[2.] The statute seems to be limited to actions pursuant to a “rule, regulation, or policy”; and the California Supreme Court has defined “policy” as “[a] settled or definite course or method adopted and followed” by the employer. But, as the Louisiana Supreme Court held, interpreting a similar statute, “[T]he actual firing of one employee for political activity constitutes for the remaining employees both a policy and a threat of similar firings.” And such firing tends to coerce other employees: “[T]he actual firing of one employee for political activity constitutes for the remaining employees both a policy and a threat of similar firings” (I quote again the Louisiana case).

This is especially for large companies these days, in which employment decisions have become much more formalized and bureaucratized (in part because the process of hiring and firing has become a highly legally regulated activity). It seems unlikely to me that the employer (which apparently has 15,000 employees) will say, “Nope, this was just a one-off decision, we might well handle other employees completely differently”; generally, part of its argument would indeed be that there’s some policy that this 20-year employee has violated, which is why she was fired. This might be why some recent California cases have basically treated these sections as generally applicable to firings based on political activity, e.g.,

If plaintiff was fired for his particular political perspective, affiliation or cause of favoring Proposition 8 or being against same-sex marriage, so that it may be inferred that (as plaintiff alleged) Safeway was in effect declaring that the espousal or advocacy of such political views will not be tolerated—then Safeway’s action constituted a violation of Labor Code sections 1101 and 1102.

or

Ali asserts he was fired not because the content of his articles contravened the editorial policies or standards of the newspaper, but because outside of the workplace he publicly criticized an influential public official for supporting a particular political candidate. Whether Ali can ultimately prove all the elements of his claim, he has submitted sufficient evidence of a public policy violation to survive a motion for summary judgment

[3.] Now a California employer is free to fire employees because they committed crimes, or even because it believes they committed crimes, apart from their political activity. If, for instance, Alight the employer fires anyone who it has reason to think were engaged in a riot or vandalism, that isn’t itself firing for political activity.

But Snyder’s allegation is that she didn’t commit any crimes. And to the extent that the employer inferred that she must have committed crimes based simply on her attendance at the Capitol protest, I think that has to be treated as a restriction on political activity.

[4.] Naturally, all of this would equally apply to people attending any sort of protest, left-wing, right-wing, or otherwise: e.g., an anti-police-brutality protest at which some of the protesters engaged in vandalism or arson, an anti-abortion protest at which some of the protesters illegally blocked entrances to an abortion clinic, an anti-globalization protest at which some of the protesters violated the law, or anything else along those lines.

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San Francisco School Board Votes 6-1 To Rename 44 Schools

rtrltwelve043563

San Francisco’s school board voted 6-1 on Tuesday to accept a committee’s recommendation to rename 44 public schools that honor historical figures like Presidents Abraham Lincoln, George Washington, and Thomas Jefferson. A school named for current Democratic Senator Dianne Feinstein will be retitled as well.

“It’s a message to our families, our students and our community,” said board member Mark Sanchez, according to the San Francisco Chronicle. “It’s not just symbolic. It’s a moral message.”

The board had been considering this move for some time, despite opposition from Mayor London Breed, a Democrat, who rightly objected to the timing.

“In the midst of this once in a century challenge, to hear that the District is focusing energy and resources on renaming schools—schools that they haven’t even opened—is offensive,” said Breed in October.

“It’s offensive to parents who are juggling their children’s daily at-home learning schedules with doing their own jobs and maintaining their sanity. It’s offensive to me as someone who went to our public schools, who loves our public schools, and who knows how those years in the classroom are what lifted me out of poverty and into college. It’s offensive to our kids who are staring at screens day after day instead of learning and growing with their classmates and friends.”

Offensive, indeed. The renaming process is likely to cost schools millions of dollars at a time when the district is already facing a significant budget deficit; the Chronicle estimates it will be $75 million by next year. San Francisco schools don’t have a single dollar to waste on new signs: Every cent must go toward protective equipment, ventilation, and whatever else is needed to get kids back in their desks. Whether a school is named Abraham Lincoln Elementary or George Washington High or School McSchoolface is really not important right now. (And what’s wrong with Lincoln, anyway? He freed the slaves!)

That the school board is wasting time with this speaks volumes about the competency of its members.

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Teachers Unions Use Accusations of Racism To Oppose School Reopening

TeacherCoffin

The Chicago Teachers Union (CTU), as Robby Soave detailed this morning, is on strike this week over being asked to teach in schools. Last month, the CTU laid out its basic objection in one short if repetitive (and eventually deleted) sentence: “The push to reopen schools is rooted in sexism, racism and misogyny.”

This non-sequitur of an argument—why would racists advocate on behalf of educating a school population that’s 89 percent nonwhite?—has nonetheless been popular this past week among teachers unions and their supporters who oppose reopening schools on grounds of safety, even though the Centers for Disease Control (CDC) has repeatedly stressed that (in the words of recently departed director Robert Redfield) schools are “one of the safest places [kids] can be.”

“Will We Let ‘Nice White Parents’ Kill Black and Brown Families?” asked the Chicago Unheard headline over a Jan. 24 piece (reprinted at Education Post) by public school teacher Mike Friedberg.

“The culture of white supremacy and white privilege can be seen in our very own community in regards to the decision to reopen schools in a hybrid format, despite rising cases and community spread,” wrote 140 members of the Pasco (Washington) Association of Educators Tuesday.

The Cambridge (Massachusetts) Education Association on Friday rejected school reopening plans while endorsing an Educators of Color Coalition letter that stated in part, “We have said repeatedly that the process the District has undergone, as well as the plans they have put forth for reopening, are rooted in white supremacy norms, values, and culture.”

The school-reopening debate after 320 days of some districts being shuttered is bound to be emotional and messy. We’re in the dead of winter, the pandemic death toll in the U.S. is rapidly approaching a half-million, businesses are on their last rubber band, and the vaccines for most people are still just out of reach. It is a season crying out for urgency, yes, but also grace. Which seems to be in short supply.

Like Chicago, Cambridge is an overwhelmingly Democratic-voting town. As are the New Jersey townships of Montclair, which this week saw unions pull the rug out from under school reopening, and nearby Maplewood, which last week finally reopened. A lengthy New York magazine feature this week about the fraught politics of those two New Jersey cases underscores something I have been writing about for the past year and a half: Politicians and public-education officials in staunchly progressive cities are using accusations of racism and white privilege in such a way that discourages public participation by any parents who may disagree with their policies.

April Mason, a public-relations professional, told New York reporter Andrew Rice that she was hesitant to speak up about reopening schools: “I’m a liberal, and I didn’t want to make a lot of noise about this issue. It was almost like this whisper campaign.”

Rice, who lives in Montclair, paints a scene of professional-class lefties walking on eggshells, in part for fear of being tarred as Trumpy and racist:

For months, the parents’ conversations about the issue had been mumbling and conflicted….Some social-justice activists, who have an outsize influence in the community, were apt to say that anyone who discounted the risks of COVID-19, which has brutally impacted Black families, was speaking from a position of privilege. No one wanted to alienate their children’s teachers. No one wanted somebody to die. No one wanted to sound like Trump. […]

“I still get called a granny killer,’ says Maya Ziobro, a parent who supports reopening. ‘If we say anything about wanting our kids to return to school, we’re painted as Trumpers.”

This isn’t some kind of white paranoia. Rice quotes Rutgers communications professor Khadijah Costley White, founder of SOMA Justice, “a group of local volunteers working to promote racial justice and safe spaces for people of color,” thusly:

“You see all these mothers constantly using poor and abused kids as fronts for getting their own kids back in school,” White said. How many of them were outraged, she asked, at the disparities within the school system before COVID? Through her eyes, it looked as if many of the protesters were affluent suburban parents, demanding that the schools bend to serve their own needs, as usual, while wishing away the deadly reality of the pandemic. “To me,” White said, “that doesn’t sound too different from the Trumpers.”

One of the reasons articles like these are such chalkboard-scratching exercises is that they illustrate how our degraded, Manichean national political discourse, in which opponents don’t just have a different preference for using government to solve a problem but literally want people to die, can, when grafted onto local situations, ruin personal relationships and community goodwill.

It also demonstrates that the effect, intended or not, of increasingly deploying such radioactive phrases as “white supremacy” to describe routine disagreements, is to actively alienate those on the butt end of the accusation. People in positions of power in Democratic strongholds are growing accustomed to opposition melting away in the face of words like “racism,” “privilege,” or “Trump,” in no small part because the “Nice White Parents” that abound in such polities will be mortified to be labeled as part of the problem, not the solution.

There is an alternative path to both sides in such disputes. Don’t assume that the other wants to kill people. Use precision in arguments, especially when making grave personal accusations. Freely acknowledge error and the limitations of your knowledge. And if someone calls you the worst name you can bear, don’t whisper, don’t slink off: Laugh at them. And then come back twice as loud.

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